Dibb v Transport for NSW - [2021] NSWCATAD 340

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Dibb v Transport for NSW [2021] NSWCATAD 340
Hearing dates: 30 September 2021
Date of orders: 15 November 2021
Decision date: 15 November 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: L Pearson, Principal Member
Decision:
(1) The decision under review is varied, and access is to be provided to the valuation reports for 14 and 14A Bruxner Park Road Korara NSW, subject to the redaction of personal and financial information at the following pages:
(a) 14 Bruxner Park Road, 16 November 2016: p 6;
(b) 14A Bruxner Park Road, 20 November 2018: pp 12, 13, 27, 28, 45, 46;
(c) 14A Bruxner Park Road, 15 August 2017: header, and pp 1, 3, 8, 9, 10, 27, and Letter of Instruction.
(2) Any submissions in support of an application for costs are to be provided to the Tribunal and the other party no later than 14 days after the publication of these reasons.
(3) Any submissions in response are to be provided to the Tribunal and the other party no later than 14 days after the date referred to in (2).
(4) The parties’ submissions are to include any submission as to whether a hearing is required on costs. Subject to considering any such submissions, the Tribunal proposes to dispense with a hearing and determine any application for costs on the basis of the documents provided to the Tribunal.

Catchwords:
ADMINISTRATIVE LAW – access to information – valuation reports – business interests of agencies – personal and financial information – agency decision to provide access to information – whether informal release of government information

Legislation Cited:
Civil and Administrative Tribunal Act 2013
Government Information (Public Access) Act 2009
Land Acquisition (Just Terms Compensation) Act 1991
Privacy and Personal Information Protection Act 1998

Cases Cited:
BDK v Department of Education and Communities [2015] NSWCATAP 129
Fearnley v Health Care Complaints Commission [2020] NSWCATAD 30
Zonnevylle v Department of Justice [2019] NSWCATAP 44

Category: Principal judgment
Parties: Raymond Dibb (Applicant)
Transport for NSW (Respondent)
Representation: Solicitors:
Applicant in person
Corporate Services, Transport for NSW (Respondent)

File Number(s): 2021/186397
Publication restriction:
Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 publication of the matters contained in the unredacted copies of the valuation reports lodged with the Tribunal is prohibited.
Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 disclosure to the applicant of the material redacted from the copies of the valuation reports in evidence is prohibited.

REASONS FOR DECISION

On 29 April 2021 Raymond Dibb applied to the respondent Transport for NSW (TfNSW) under the Government Information (Public Access) Act 2009 (the GIPA Act) for access to government information relating to a number of properties in the Korora area of NSW affected by construction of the Coffs Harbour Bypass.
The scope of the access application was narrowed, and as amended sought access to:

1. Copies of all Valuation Reports and Town Planning Reports obtained on behalf…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWCATAD 340
Decision Date: 15 November 2021

CaseChat Overview and Summary

Dibb v Transport for NSW involved a dispute over the release of valuation reports for two properties located at 14 and 14A Bruxner Park Road, Korara, NSW. The applicant sought access to these reports under the Government Information (Public Access) Act 2009 (NSW). Transport for NSW opposed the release of certain personal and financial information contained within the reports. The matter was heard in the NSW Civil and Administrative Tribunal.

The primary legal issue before the Tribunal was whether the personal and financial information contained within the valuation reports was exempt from disclosure under the Act. The Tribunal considered the scope of exemptions under the Act, focusing on section 22(1)(d) which exempts personal information, and section 22(1)(f) which exempts information that is commercially sensitive. The Tribunal also needed to balance the public interest in access to government information against the business interests of Transport for NSW in protecting certain information.

The Tribunal concluded that the valuation reports contained significant information relevant to the applicant's claim and should be disclosed. However, it determined that certain personal and financial details could be redacted to protect the privacy of individuals and to prevent the disclosure of commercially sensitive information. The Tribunal found that the public interest in access to the information outweighed the business interests of Transport for NSW in withholding the reports in their entirety. Accordingly, the Tribunal ordered the release of the reports with specified redactions.

In light of the Tribunal's decision, the parties were directed to submit any relevant submissions regarding an application for costs within a specified timeframe. The Tribunal proposed to determine the costs application on the basis of the documents provided, unless a hearing was deemed necessary based on the submissions received.

Orders

Orders of the court

(1) The decision under review is varied, and access is to be provided to the valuation reports for 14 and 14A Bruxner Park Road Korara NSW, subject to the redaction of personal and financial information at the following pages:

(a) 14 Bruxner Park Road, 16 November 2016: p 6;

(b) 14A Bruxner Park Road, 20 November 2018: pp 12, 13, 27, 28, 45, 46;

(2) Any submissions in support of an application for costs are to be provided to the Tribunal and the other party no later than 14 days after the publication of these reasons.

(3) Any submissions in response are to be provided to the Tribunal and the other party no later than 14 days after the date referred to in (2).

(4) The parties’ submissions are to include any submission as to whether a hearing is required on costs. Subject to considering any such submissions, the Tribunal proposes to dispense with a hearing and determine any application for costs on the basis of the documents provided to the Tribunal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Dibb v Transport for NSW [2021] NSWCATAD 340
Hearing dates:	30 September 2021
Date of orders:	15 November 2021
Decision date:	15 November 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	L Pearson, Principal Member
Decision:	(1) The decision under review is varied, and access is to be provided to the valuation reports for 14 and 14A Bruxner Park Road Korara NSW, subject to the redaction of personal and financial information at the following pages: (a) 14 Bruxner Park Road, 16 November 2016: p 6; (b) 14A Bruxner Park Road, 20 November 2018: pp 12, 13, 27, 28, 45, 46; (c) 14A Bruxner Park Road, 15 August 2017: header, and pp 1, 3, 8, 9, 10, 27, and Letter of Instruction. (2) Any submissions in support of an application for costs are to be provided to the Tribunal and the other party no later than 14 days after the publication of these reasons. (3) Any submissions in response are to be provided to the Tribunal and the other party no later than 14 days after the date referred to in (2). (4) The parties’ submissions are to include any submission as to whether a hearing is required on costs. Subject to considering any such submissions, the Tribunal proposes to dispense with a hearing and determine any application for costs on the basis of the documents provided to the Tribunal.
Catchwords:	ADMINISTRATIVE LAW – access to information – valuation reports – business interests of agencies – personal and financial information – agency decision to provide access to information – whether informal release of government information
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Land Acquisition (Just Terms Compensation) Act 1991 Privacy and Personal Information Protection Act 1998
Cases Cited:	BDK v Department of Education and Communities [2015] NSWCATAP 129 Fearnley v Health Care Complaints Commission [2020] NSWCATAD 30 Zonnevylle v Department of Justice [2019] NSWCATAP 44
Category:	Principal judgment
Parties:	Raymond Dibb (Applicant) Transport for NSW (Respondent)
Representation:	Solicitors: Applicant in person Corporate Services, Transport for NSW (Respondent)
File Number(s):	2021/186397
Publication restriction:	Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 publication of the matters contained in the unredacted copies of the valuation reports lodged with the Tribunal is prohibited. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 disclosure to the applicant of the material redacted from the copies of the valuation reports in evidence is prohibited.